Draft Defamation Bill - Joint Committee on the Draft Defamation Bill Contents


The Government's draft Bill proposes worthwhile reforms of defamation law, notably in effectively removing trial by jury, with its associated high costs, and in providing better protection for publishers by introducing the new single publication rule. Yet the changes to the defences available against libel claims, while welcome, do not always achieve the clarification sought. For a Bill that is overdue, the Government's current draft may be thought modest. It does not, in some important respects, strike a fair balance between the protection of reputation and freedom of speech. More fundamentally, we have determined that it is procedural change that, while understandably omitted from the draft Bill, is essential to addressing the key problem in defamation law—the unacceptably high costs of litigation. There is also the challenge of enforcing defamation law in the global, online environment. The Government's reforms to defamation law and practice should form part of a strategic approach to the wider reform of civil litigation that embraces procedural change, the operation of the related law on privacy and the relationship between Parliament and the courts.

In our consideration of the Government's draft Bill and the wider issues on which the Government invites comment we have established four core principles, as follows.

  • Freedom of expression/protection of reputation: some aspects of current law and procedure should provide greater protection to freedom of expression. This is a key foundation of any free society. Reputation is established over years and the law needs to provide due protection against unwarranted serious damage;
  • Reducing costs: the reduction in the extremely high costs of defamation proceedings is essential to limiting the chilling effect and making access to legal redress a possibility for the ordinary citizen. Early resolution of disputes is not only key to achieving this, but is desirable in its own right—in ensuring that unlawful injury to reputation is remedied as soon as possible and that claims do not succeed or fail merely on account of the prohibitive cost of legal action. Courts should be the last rather than the first resort;
  • Accessibility: defamation law must be made easier for the ordinary citizen to understand and afford, whether they are defending their reputation or their right to free speech; and
  • Cultural change: defamation law must adapt to modern communication culture, which can be instant, global, anonymous, very damaging and potentially outside the reach of the courts.

These principles have guided us in developing our recommendations and are clearly evident throughout our Report. In support of the better protection of freedom of speech, we propose measures to prevent corporations from using their financial muscle to silence critics by the threat of legal action, unless the court accepts at the outset that there may be a likelihood of the corporation suffering substantial financial loss. We also recommend a higher threshold of seriousness in order for libel claims to progress; improved protection for scientific debate; some additional protection for publishers, particularly secondary publishers, including those online; and a new?/specific? statutory protection of communication between constituents and their MP. We have also sought to provide balancing protection of reputation, for example in giving the courts a new power to order the publication of their judgments when necessary.

We have pursued our key aim of reducing the costs of defamation action by recommending a new approach which should encourage cheaper, more efficient alternative methods of dispute resolution, such as mediation and arbitration, and more effective management of those few cases that do reach court.

Our core principle of improving the accessibility of the law to the ordinary citizen has been promoted by our preference for putting aspects of the common law into statute and the introduction of easily-understood and relatively inexpensive new procedures, particularly in the online environment.

Modern means of communication represent perhaps the biggest challenge facing the operation of the law on defamation. The practical realities of policing a global conversation, straddling different legal jurisdictions, require us to adopt imaginative means of mitigating the serious damage to reputation that can be wrought at the click of a button. We propose a clear and simple regime governing the responsibilities of internet service providers and the means of redress available to those who believe their reputation has been damaged unlawfully online. This regime covers the publication of material on the full range of electronic platforms that currently exist and will no doubt develop further. As part of this approach we seek to promote a cultural change in order to limit the credibility of, and therefore damage that can be caused by, material that is published anonymously.

Some of the proposals we have brought forward will require further detailed work, but we believe they can be developed to secure lasting improvements to the operation of the law on defamation and its availability to the ordinary citizen. We look forward to the Government taking them forward speedily in a revised Bill and associated procedural reforms.

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© Parliamentary copyright 2011
Prepared 19 October 2011